Two celebrated passages in Kant center on a problem that is sometimes called the ‘availability’ of motives. One concerns the naturally sympathetic man whose mind becomes “overclouded by sorrows of his own which extinguish all sympathy with the fate of others”. Kant argues that even in this state, when he has no “inclination” to help others, he can do so, since he can act “for the sake of duty alone”.1 The other passage states that the commandment to love our neighbor (...) cannot mean that we must act from “pathological love”, that is, an emotion or feeling of love. Feeling is not under our control. We can, however, perform acts of “practical love”, that is, acts of assistance, and these acts we can perform from the motive of duty.2 One way to combine the conclusions of these two arguments is to say that for Kant the motive of duty is always ‘available’, but motives like sympathy and “pathological love” are not. One question that arises here is whether Kant drew a mistaken conclusion from the second argument. W.D. Ross seemed to think so, because he takes the argument to be completely general.3 That is, he takes Kant to have proved that no motive, including the sense of duty, is always available. Ross’ focus was on obligation-making motives. He took his view about the availability of motives, along with the principle that ‘ought’ implies ‘can’, to entail PR. (shrink)

Certain moral claims are said to support two types of ‘positive’ retributivist theory of state punishment. A positive retributivist theory states that desert is a reason to impose state punishment. The moral claims assert that we have a moral reason in general to give guilty wrongdoers what they deserve. I consider one well-known strategy for establishing the existence of such a moral reason: thought experiments like Kant’s ‘desert island’. These experiments have not been properly designed, since they give us no (...) way of determining how strong the moral reason in question is. If they are properly designed we see that the moral reason is at best quite weak. This means that one of the two types of positive retributivist theory is false. The other type may also be false, but in any case it must largely rely on non-retributivist moral considerations. Moral intuition, properly focused, does not support positive retributivism. (shrink)

Retributivist approaches to the philosophy of punishment are usually based on certain fundamental moral claims. One of these claims is also accepted, or at least treated sympathetically, by some consequentialists. It is this: -/- Intrinsic Value (IV): The deserved suffering of morally guilty wrongdoers has intrinsic value. -/- IV is sometimes supported by the construction of examples similar to Kant’s ‘desert island’. These are meant to show that there is intrinsic value in the suffering of a wrongdoer, even if none (...) of the familiar goals of punishment, such as deterrence, will be achieved. When suitable variants of such examples are presented, it is evident that there cannot be much intrinsic value in such suffering, relatively speaking, even if there is some. The same problem besets retributivist claims that guilty wrongdoers deserve to suffer, or that justice requires us to make the guilty suffer. Such claims are, at best, relatively weak normatively. (shrink)

It is considered to be a devastating objection to utilitarianism (and consequentialism) that it would sometimes favor deliberately punishing an innocent person. I call this The Objection. In this paper I try to find the origin of The Objection. Although various writers have suggested that it occurs much earlier, I claim that it emerged in Oxford in the late 1920's, and may have been invented by W. D. Ross.

I examine the argument that designing punishment to achieve deterrence is morally objectionable because it uses the offender simply as a means. Using material from my book Motive and Rightness I show that Kant's Formula of Humanity cannot be interpreted as employing the concept of 'using a person simply as a means'. FH must instead be interpreted to mean that we must always treat people as ends. If this is correct the argument about deterrence is weakened. I apply my arguments (...) about FH to a principle recently used by Victor Tadros, who objects to consequentialist approaches to punishment on Kantian grounds. I go on to show that the most plausible way to use FH in thinking about punishment reveals that it will allow for the pursuit of deterrence. In that regard, Kantianism and consequentialism are not opponents. In the last section I briefly give a reason for thinking that consequentialism is superior. (shrink)

In this paper I explore the degree to which the most plausible versions of a Kantian approach to punishment differ from plausible versions of a consequentialist approach with regard to the permissibility of deterrence. I begin by examining the Formula of Humanity. Perhaps surprisingly, I show that the most plausible statement of this principle does not even mention the idea of treating people merely as a means. The other crucial claim in that principle—that we must treat people as ends—is in (...) fact the operative idea. The best interpretation of the Formula of Humanity makes Kantianism a basically ‘objective’ moral theory, in a sense to be explained, as is consequentialism. After defending my interpretation of the formula I go on to consider a recent theory of punishment developed by Victor Tadros that appeals to a principle paralleling the Formula of Humanity, the Means Principle. I argue that the Means Principle is not a plausible moral principle by using arguments that derive from my interpretation of the Formula of Humanity. The Means Principle is therefore unsuited to be the way to frame a discussion of whether deterrent punishments are permissible. In Section IV I discuss a version Kantian moral theory that can be seen as based on a proper interpretation of the Formula of Humanity. This version, drawing on the work of John Rawls, permits the pursuit of deterrence. This suggests that Kantianism and consequentialism are not divided on the issue of the permissibility of deterrence. In the final section I note one reason for thinking that further features of the consequentialist approach to deterrence make it superior to the Kantian-Rawlsian. (shrink)

The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a reformed offender (...) will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value. (shrink)

The concept of intentional action occupies a central place in commonsense or folk psychological thought. Philosophers of action, psychologists and moral philosophers all have taken an interest in understanding this important concept. One issue that has been discussed by philosophers is whether the concept of intentional action is purely ‘naturalistic’, that is, whether it is entirely a descriptive concept that can be used to explain and predict behavior. (Of course, judgments using such a concept could be used to support moral (...) or evaluative judgments about responsibility, praise and blame.) A related question is whether speakers’ views about moral and evaluative issues at least affect their judgments about intentionality, even if their explicit concept of intentional action is not itself evaluative. (shrink)

Contemporary Kantians who defend Kant''s view of the superiority of the sense of duty as a form of motivation appeal to various ideas. Some say, if only implicitly, that the sense of duty is always ``available'''' to an agent, when she has a moral obligation. Some, like Barbara Herman, say that the sense of duty provides a ``nonaccidental'''' connection between an agent''s motivation and the act''s rightness. In this paper I show that the ``availability'''' and ``nonaccidentalness'''' arguments are in tension (...) with one another. And the ``availability'''' idea, although certainly supported by some passages in Kant himself, is also clearly denied in other passages. My conclusion is that Kantians will need to abandon either availability or nonaccidentalness if they wish to have a consistent set of views about the sense of duty. (shrink)

The main previous analyses of punishment by Hart, Feinberg and Wasserstrom are considered and criticized. One persistent fault is the neglect of the idea that in punishment the person subjected to it is represented as having no valid excuse for wrongdoing. A new analysis is proposed which attempts to specify in what sense punishment by its very nature is retributive, as Wasserstrom has asserted. Certain problematic cases such as strict liability offenses and pre-trial detention are considered in light of the (...) new analysis. (shrink)

More than one person can be responsible for a particular state of affairs--In this sense collective moral responsibility does indeed exist. However, Even in such cases, Moral responsibility is still fundamentally individualized since each agent responsible for a particular state of affairs is responsible for his/her actions which have the intention of producing this state of affairs.